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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Egypt (RATIFICATION: 1957)

Other comments on C087

Observation

Direct Request

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The Committee takes note of the observations made by the International Trade Union Confederation (ITUC) received on 25 September and 13 October 2020, in relation to the application of the Convention in law and in practice. It further notes the observations made by Public Services International (PSI) on behalf of its affiliates the Real Estate Taxes Authority Union (RETA), the Bibliotheca Alexandrina Staff Union (BASU) and the Egyptian Ambulance Organization Employees Syndicate, as well as its partner organization, the Center for Trade Union Workers’ Services (CUTWS), received on 22 October 2020.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

In its previous comments, the Committee recalled the conclusions of the Conference Committee on the Application of Standards in June 2019 concerning the application of the Convention. In particular, the Committee observed that the Conference Committee called upon the Government to: (i) ensure that there are no obstacles to the registration of trade unions, in law and practice, in conformity with the Convention; (ii) act expeditiously to process pending applications for trade union registration; (iii) ensure that all trade unions are able to exercise their activities and elect their officers in full freedom, in law and in practice, in accordance with the Convention. It further called upon the Government (iv) to amend the Trade Union Law to ensure that: the level of minimum membership required at the enterprise level, as well as for those forming general unions and confederations, did not impede the right of workers to form and join free and independent trade union organizations of their own choosing; and that workers were not penalized with imprisonment for exercising their rights under the Convention; and (v) to transmit copies of the draft Labour Code to the Committee of Experts before its session in November 2019. Finally, the Conference Committee invited the Government to accept ILO technical assistance to assist in implementing these recommendations.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. Application in law and in practice. The Committee recalls from its previous comments the Government’s indication that the Minister of Manpower created a legal and technical committee reporting directly to him mandated with examining all problems facing union organizations that had failed to regularize and then to offer the required technical support. The ministerial committee had examined the submissions and informed the organizations of some legal and procedural restrictions on 27 August 2019. The Government added that 11 new union committees (only ten different names were provided by the Government) were created during the months of July and August and one new general union was formed bringing the number of such unions established according to the 2011 Ministerial Declaration on Freedom of Association to five general unions, including two that were not members of a higher union federation. The Committee had noted the subsequent indication by the Government that the ministerial committee had further reviewed registration papers submitted by the following 11 new trade union committees and was finalizing the procedures so that they could receive certificates of legal personality: (Trade Union Committees of Workers in Real Estate Tax in Kafr Al Sheikh, Giza and Beni Sewaif; Trade Union Committee of Workers in the Water and Sanitation Company in Qena; Trade Union Committee of Sanitation Workers in Gharbeya; Trade Union Committee of Representatives of associations and private institutions; Trade Union Committee of Workers in Hunting in Giza; Trade Union Committee of Workers in Transportation and Transport in Giza; Trade Union Committee of Workers in Cement in Suez; Trade Union Committee for Workers in Transportation and Transport in Damietta; Trade Union Committee for Workers in Telecommunications in Qena).

The Committee notes the information provided by the ITUC that since the dissolution of all independent unions in 2018, workers and their representatives have sought the re-registration of their unions but still face an arduous and arbitrary process and in practice the authorities still impose excessive and absurd registration requirements, such as obtaining the employer’s approval and stamp. As regards the eleven trade union committees in particular for which the Government had indicated the procedures for recognition were being finalised, the ITUC and the PSI indicate that three of the eleven - the Trade Union Committees of Workers in Real Estate Tax in Kafr Al Sheikh and Giza, the Trade Union Committee of Workers in the Water and Sanitation Company in Qena and the Trade Union Committee of Sanitation Workers in Gharbeya - were still awaiting registration. They further refer to the Trade Union Committee of Quality Assurance in Giza, which has been awaiting registration for over a year. They add that no tangible progress has been made by the technical committee mandated to review the obstacles to trade union registration and that, since March, no meeting has been organized, even virtually. The ITUC and the PSI submit a list of 19 trade union organizations that have yet to be registered, despite their complying with the administrative requirements, and another ten organizations that had adjusted their legal status based on the new administrative requirements yet continued to be refused the necessary papers for their operation.

The Committee takes due note of the Government’s reply that the Ministry already meets with the trade union organizations seeking to be constituted and helps them to resolve all of their problems and guarantees them all of their entitlements pursuant to the applicable law. According to the Government, the Ministry has succeeded in surmounting many of the obstacles facing them, although the events that have affected the world, including Egypt, as a result of the repercussions of the coronavirus crisis have prevented this from being completed at the speed hoped for. On the one hand, workers in the Ministry and in the municipalities were granted exceptional leave and on the other hand, representatives of the trade union organizations were obliged to isolate at home for periods of time as a precautionary measure and informed the Ministry officially thereof. More generally, the Government indicates that the time taken for the completion of the registration process varies with the extent of awareness of the organization, which submits the legally required documents. In the case of completion of documents, the legal representative shall be given the minutes of submission within approximately two days. In the case of incompletion of documents, the organization submitting the documents shall be informed of the required documents to be submitted, and the manner of getting them. In the case that the documents submitted are found to be incorrect or insufficient, the competent administrative body shall have the right, within thirty days as of the date on which the documents were deposited, to notify the legal representative of the organization thereof by means of a recommended letter. If a trade union organization does not rectify its documents or procedures, which are the subject of notification, or complete the documents or procedures within thirty days as of the date on which the notification was received, the competent administrative body shall have the right to object to the establishment of the trade union organization before the competent labour tribunal. Numerous trade union organizations, which exercised their activity in accordance with the Ministerial Declaration of 2011, succeeded in regulating their status or in submitting the incorporation documents, and became integrated under a legal umbrella, which regulates their status on an equal basis with organizations established under the previous law. The Government adds that it has received approximately 67 incorporation applications to date. It reaffirms its belief that full compliance with international labour standards especially freedom of association and collective bargaining is one of the most important pillars for the stability of industrial relations, its regularity, and its positive impact on production and economic growth. The Government adds that there are numerous challenges and difficulties encountering the three social partners, especially since the new trade union movement in Egypt is a nascent trade union movement that should be fostered and provided with all relevant support. The Government emphasizes that the technical assistance project to be implemented on "Strengthening labour relations and its institutions in Egypt" provides a real opportunity to raise awareness on freedom of association and the role of the social partners in observing international labour standards and in overcoming any difficulties. The Ministry has set up a standing committee to examine complaints submitted by trade union organizations and to provide them with the necessary technical assistance by virtue of Ministerial Decision No. 162 of 2020, published in the Egyptian Official Gazette in order to ensure its sustainability. During the month of November, the standing committee held four sessions and examined twenty-six cases. To date, ten union committees were given certificates of legal personality. Other trade union committees were completing their papers.

The Government further indicates that it has reached out to the three trade union committees in the above list that had not yet finalized their registration. According to the Government, two had not replied to its invitation while one indicated that it was finalising its papers. The Government has also reached out or will reach out to the 19 trade union committees mentioned in the most recent communication from the workers’ organizations, four of which have already received their certificate of registration. As regards the ten trade union committees that had completed the registration process but not received the necessary papers for their operation, the Government indicates that four of them now have their certificates of registration, two have taken the matter to the courts (one has won the appeal while the other is in the process), three will be invited to the Ministry to resolve any outstanding issues and one has simply not set up its executive board.

While welcoming the steps taken by the Government to engage with unions requesting registration and to assist them in the completion of this process, the Committee expects that the Government will take all necessary measures to ensure the elimination of excessive registration requirements, such as obtaining the employer’s approval and stamp, so that they may be registered without further delay. Given the numerous challenges to registration that continue to be raised, the Committee trusts that, on the basis of the 2019 amendments which had lowered the minimum membership requirement, the remaining organizations will receive their certificates of legal personality without delay so that they will be able to exercise their activities fully, in accordance with the Convention. The Committee requests the Government to continue to provide detailed information on the number of trade union registration applications received, the number of registrations granted, the reasons for any refusals to grant, as well as information on the average time taken from filing to registration.

Minimum membership requirements. In its previous comments, the Committee noted with interest the adoption on 5 August 2019 of Law No. 142 lowering the minimum membership requirement to 50 workers for the formation of a trade union committee at enterprise level, to ten union committees and 15,000 members for a general union and to seven general unions and 150,000 members for the establishment of a trade union federation (that is, a confederation). The Committee notes the ITUC observation indicating that the thresholds are still too high and in a context of intimidation and continued repression of union activities, workers and their representatives may be severely hampered in their efforts to gather such high numbers, especially in small and medium-sized establishments and in small industries or sectors. While noting the Government’s indication that the amendments were submitted to, and adopted by the Supreme Council for Social Dialogue, which deemed the numbers to be appropriate for the labour force in Egypt and proportionate to the number of establishments, the Committee once again recalls that the minimum membership requirement should be fixed in a reasonable manner so that the establishment of organizations is not hindered in respect of all levels of formation (see the 2012 General Survey on the fundamental Conventions, paragraph 89). The Committee once again requests the Government to continue to review these requirements with the social partners concerned so as to ensure that all workers are able to form and join the organizations of their own choosing and that their organizations can establish and join federations and confederations freely.

Article 3. Right of workers’ organizations to organize their administration without interference and to enjoy the benefits of international affiliation. In its previous comments, the Committee noted with interest that Law No. 142 amended sections 67, 68 and 76 so as to eliminate all references to imprisonment and establishing uniquely the payment of a fine. The Committee requested the Government to keep the application of these provisions under review and to inform of any penalties imposed, with specific reference to section 67. While noting the Government’s indication that section 67 is restricted to acts of any entity which uses- without any right to do so- in its communications, posters or ads etc., the name of a trade union organization, or exercises a union activity which is restricted to the members of the boards of directors of the trade union organization, thus aimed at the protection of trade union organizations from other entities, the Committee notes with concern from the information provided by the ITUC and PSI that this section was precisely used against the President of the Trade Union Committee of workers in Education in the Qena Governorate who was fined for leading a non-registered trade union without possessing the necessary letters to operationalize the organization. The ITUC and PSI add that this trade union committee deposited its application in May 2018 and obtained a receipt from the Directorate of Labour but did not succeed in getting a stamped procès-verbal. The Committee recalls in this respect that although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, as it is the first measure to be taken so that organizations can fulfil their role effectively, the exercise of legitimate trade union activities should not be dependent upon registration (see the 2012 General Survey on the fundamental Conventions, paragraph 83). The Committee requests the Government to review this case in light of its own explanation as to the aim of section 67 and indicate the measures taken or envisaged to ensure that these broadly worded sections are not used to penalise trade unions for carrying out their activities even if the final stages of the registration process have yet to be completed. It further requests the Government to inform it of any further penalties imposed under these provisions and the reasons for such penalties.

The Committee had also observed that the Trade Union Law set out certain specific conditions for trade union office (section 41.1 and 41.4) which it considered interfered with the right of workers’ organizations to elect their representatives in full freedom, in particular the requirement to read and write and matters related to military service. The Committee notes the Government’s indication that representatives of trade union organizations had agreed on the importance of these conditions for those who nominate themselves to the administrative and financial management of the organization since the board of directors is the executive authority. With respect to military service, the Government indicates that the provision does not specify the condition of having completed the military service, but it sets down the requirement of indicating the status vis-à-vis the military service. According to the Government, the reason for this is that if the candidate is doing his military service, this will conflict with his carrying out his trade union duties. While the ITUC alleges that the military service requirement specifically implies that migrant workers cannot stand for office, the Committee takes due note of the Government’s observation that section 41(1) calls for a candidate to trade union office to have performed or have been legally exempt from military service, the latter of which would be the case for migrant workers who would therefore not be subject to this condition. The Committee nevertheless considers that such stipulations should be the prerogative of trade union by-laws rather than being set by the legislation concerning trade unions. The Committee once again requests the Government to review these requirements with the social partners concerned with a view to bringing them into conformity with the Convention.

Further comments by the ITUC. The Committee further notes that the ITUC objects to a number of other provisions of Law No. 213 of 2017. In particular, the ITUC considers that section 5 of Law, which provides that a trade union may not be founded on a religious, ideological, political, partisan or ethnic basis runs counter to Article 2 of the Convention. The Committee notes the Government’s indication that the purpose of this provision is precisely to protect workers from discrimination and to ensure that they are not deprived of trade union membership on these grounds. In this regard, the Committee recalls that it has previously noted that the right of organizations to draw up their constitutions and rules must be subject to the need to respect fundamental human rights and that this means that it would not be inconsistent with the requirements of the Convention to require that union rules not discriminate against members or potential members on grounds of race, colour, sex, religion, political opinion, national extraction or social origin.

The ITUC further refers to detailed provisions in sections 30 and 35, which set out the competencies of executive committees and election procedure for general assemblies and section 42, which imposes detailed rules on the membership of executive committees and circumscribing their functions. The Committee notes the Government’s indication that these sections are purely regulatory to support and organize the work of the trade union movement. Finally, the Committee notes the ITUC’s observations that section 58 makes the accounts of organizations subject to the control of a central accounting body amounting to interference in their administration while the Government indicates that this body audits free of charge in order to protect workers and provide support for the organizations. The Committee recalls that legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference which is incompatible with the Convention. Where such provisions are deemed necessary, they should simply establish an overall framework within which the greatest possible autonomy is left to the organizations for their functioning and administration. Moreover, as the autonomy and financial independence are essential elements of the right of organizations to organize their administration in full freedom, any legislative intervention in this respect merits the attention of the Committee. While it accepts legislative requirements that the constitutions of organizations should contain provisions relating to their internal financial administration or which provide for external supervision of financial reports, with a view to ensuring the conditions for honest and effective administration, it considers that other interventions are incompatible with the Convention. For example, the Committee considers that such supervision is compatible with the Convention when: the supervision is limited to the obligation of submitting annual financial reports; verification is carried out because there are serious grounds for believing that the actions of an organization are contrary to its rules or the law and is limited to cases in which a significant number of workers (for example, 10 per cent) call for an investigation of allegations of embezzlement or lodge a complaint. However, the Committee considers that such supervision is incompatible with the Convention if the law tends to over-regulate matters that should be left to the trade unions themselves and their by-laws, including providing for financial supervision of the accounts by the public authorities (see the 2012 General Survey on the fundamental Conventions, paragraphs 108–110). Finally, the Committee observes that section 7 empowers in vague and broad terms the Minister to request the competent labour court to hand down a decision to dissolve the administrative board of a trade union organization if there is a violation of the law or a perpetration of gross financial or administrative violations. The Committee requests the Government to review these provisions and their application with the social partners concerned with a view to bringing them into conformity with the Convention.

Labour Code. In its previous comments, the Committee noted the draft Labour Code transmitted by the Government and which was being debated in the Manpower Committee of the Parliament. It welcomed the Government’s statement that all provisions of the draft Labour Code would continue to be reviewed and that the Committee’s comments would be presented to the Parliament. In reply to the Committee’s considerations in relation to the right to strike, the Committee notes the Government’s reaffirmation that the right to strike is a constitutional right and that its provisions are formulated through consultation and dialogue with both workers’ and employers’ representatives. In respect of the Government’s reiteration that the obligation to declare the duration of the strike does not specify a maximum period or periods of a strike action, which may be extended or renewed for similar periods, thus safeguarding the aim of a strike action as a legitimate means of pressure, the Committee recalls that workers and their organizations should be able to call a strike for an indefinite period if they so wish (see the 2012 General Survey on the fundamental Conventions, paragraph 146). As for the prohibition of strike action in strategic or vital establishments in which the suspension of work will result in a breach of national security, or in main or vital services, which are provided to citizens, the Government recalls that the identification of such facilities and the rules governing strike action will be issued by the Prime Minister. As regards the reference to a specific trade union organization in section 78 of the draft Labour Code, the Committee notes the Government’s indication that this was an error and that the Manpower Committee has been contacted to rectify it. Recalling that restrictions on the right to strike should be limited to public servants exercising authority in the name of the State, essential services in the strict sense of the term and situations of acute national crisis, the Committee expresses the firm expectation that the Labour Code will be adopted without delay and that it, along with any implementing decrees, will be fully in line with the Convention. The Committee requests the Government to provide information on the progress made in this regard and to transmit a copy of the Labour Code as soon as it has been adopted, as well as relevant regulations that may have been issued thereunder.

As regards the work on a Law regulating domestic work, the Committee notes the Government’s indication that the new draft law is still under preparation and an initial societal dialogue was held on its first draft with the social partners, experts and specialists and numerous members of Parliament. The Government adds that the Trade Union Law applies to domestic workers who will have the right to form trade unions to defend their interests. Recalling that the draft Labour Code excludes domestic workers from its coverage, including the chapters relating to collective labour relations, the Committee once again requests the Government to provide a copy of the law regulating domestic work as soon as it is adopted, as well as a copy of the model employment contract. It further requests the Government to indicate the names of any trade unions of domestic workers that have been registered and the dates on which registration was approved.